Court File Nos. 34040 & 34041
IN THE SUPREME COURT OF CANADA
(ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA)
Frederick Moore on behalf of Jeffrey P. Moore
(Appellant in the Court of Appeal for British Columbia)
Her Majesty the Queen in Right of the Province of British Columbia
as represented by the Ministry of Education, Board of Education
of School District No. 44 (North Vancouver) formerly known as
The Board of School Trustees of School District No. 44 (North Vancouver)
(Respondents in the Court of Appeal for British Columbia)
Attorney General of Ontario, Justice For Children and Youth, British Columbia Teachers’ Federation, Council of Canadians with Disabilities, Ontario Human Rights Commission, Saskatchewan Human Rights Commission and Alberta Human Rights Commission, International Dyslexia Association, Ontario Branch, Canadian Human Rights Commission, Learning Disabilities Association Of Canada, Canadian Constitution Foundation, Manitoba Human Rights Commission, West Coast Women’s Legal Education and Action Fund, Canadian Association for Community Living, Commission des Droits de la Personne et des Droits de la Jeunesse, British Columbia Human Rights Tribunal, First Nations Child And Family Caring Society Of Canada
FACTUM OF THE INTERVENERS THE ONTARIO HUMAN RIGHTS COMMISSION,
THE SASKATCHEWAN HUMAN RIGHTS COMMISSION AND THE ALBERTA HUMAN RIGHTS COMMISSION
PART I - STATEMENT OF FACTS
1. The joint Interveners, the Ontario Human Rights Commission, the Saskatchewan Human Rights Commission and the Alberta Human Rights Commission (hereinafter “the OHRC, SHRC and AHRC”) rely on the statement of facts as set out in the appellant’s factum and take no position with respect to any disagreement between the parties on factual matters.
PART II - QUESTIONS IN DISPUTE
2. Two central issues in this appeal are the scope of the term “services” and the inapplicability of a comparator group analysis in an accommodation case. The OHRC, SHRC and AHRC submit that, based on principles of statutory interpretation applicable to human rights codes, existing equality rights jurisprudence, human rights policies and the international Convention on the Rights of Persons with Disabilities, the term “services” in human rights legislation should be defined broadly. In particular, general education that is available to all students is the service and special education is an accommodation aimed at allowing students with disabilities equal access to that education. Further, the selection of a comparator group is neither a required nor an appropriate part of a human rights discrimination analysis where a person requires accommodation to be able to access a service or employment.
PART III - STATEMENT OF ARGUMENT
3. The definition of the services at issue and the comparator group analysis are, as noted in the dissenting judgment of Rowles J.A. of the Court of Appeal at para. 88, inextricably intertwined. The approach to each in the decisions of the British Columbia Superior Court and the majority decision of the Court of Appeal is inconsistent with the goal of substantive equality and the large and liberal interpretation to be given to human rights legislation. Each analysis, on its own, undermines the purpose of the protections provided in human rights legislation. However, the combined effect of the restricted definition of services and the comparator group analysis is even more problematic and has broad implications for a variety of human rights claims across Canada.
4. A narrow definition of the term “services” combined with the comparator group analysis could apply to any number of formalized accommodations that are currently provided. The principles are not restricted to education cases, nor to cases involving people with disabilities. Taken to its logical conclusion, any organization can potentially argue that the accommodations currently provided are the service at issue and, if all persons with disabilities experience the same treatment regardless of the nature of their disability, there is no human rights violation. It is possible that similar arguments could be made for accommodations related to other human rights grounds, such as creed or pregnancy. This approach undermines substantive equality and may encourage service providers or employers to provide minimal levels of accommodation to all groups, or to not accommodate at all; since if there is no accommodation, there is no service and therefore no discrimination.
5. The use of a comparator group analysis in an accommodation case inappropriately calls for a claimant to show that the accommodation provided to that claimant is inferior to the accommodation provided to others. Human rights claimants ought not to be required to prove that they are the worst off compared to everyone else. This Honourable Court has stated that this “race to the bottom” approach which “[pits] one disadvantaged group against another” is inappropriate.
6. In Ontario alone, there are approximately 300,000 pupils receiving special education supports. No doubt many more individuals use para-transit, rear view captioning for the Deaf or descriptive audio for the visually impaired available in movie theatres and physical accommodations, such as wheelchair ramps, to access services and facilities on an equal basis. The gains that have been made in recognizing the needs of many individuals with disabilities, should not prevent others from arguing that their needs have not been accommodated.
7. Further, when considering the issues discussed below it is important to remember that the ultimate goal, as recognized by this Honourable Court in decisions such as Eaton and Meiorin is to strive for inclusiveness and universal design. Fine-tuning society so that its structures and systems, to the greatest extent possible, allow participation by all its members, without the need for segregated systems is preferable. Defining the scope of services based on the fact that a separate system may continue to exist for students with disabilities undermines the goal of inclusive education by allowing an inclination to maintain segregated systems for dealing with disability-related needs, even where segregation is not required to achieve equality.
i) The Service at Issue is General Education.
8. The Superior Court stated that in determining the nature of the service in question there are really three questions: 1) what is the service; 2) what is the “public” that is being served; and 3) was that service customarily available to that public?
9. With regard to the first question, the Superior Court found that as Jeffrey Moore was not claiming access to general education services offered to regular students, but sought an individual program tailored to his special needs as a student with dyslexia (for Moore, a severe learning disability), the service at issue was not general education. In essence, because as a student with special needs, he was seeking an accommodation to access education services, the Superior Court characterized the accommodation being sought as the service itself.
10. Compounding this fundamental problem, when considering the second and third questions, the Court misapprehended the purpose of the “customarily available” or “customarily offered” to the public qualification that exists in some Canadian human rights statutes. The Court stated that the British Columbia Human Rights Tribunal failed to interpret “customarily available to the public” as a “preliminary limiting consideration” in defining the nature of the service at issue. However, as noted by this Honourable Court in Berg, the purpose of the qualification is to ensure that only “discrimination by enterprises which purport to serve the public” is captured and to exclude private matters from review:
…the legislature demonstrated an intention to restrict the application of the Act to what may be described, subject to considerable refinement below, accommodations, services or facilities provided in the “public” sphere. Although many legislatures have chosen different verbal formulae to so restrict the application of human rights legislation, the basic motivation behind such limiting words is clear: the legislature did not wish human rights legislation to regulate all of the private activities of its citizens. [Emphasis added.]
11. Once again, the Superior Court defined the services by reference to the accommodation sought. In essence, the Court reasoned that as the respondents did not provide what Jeffery Moore was seeking, there could be no discrimination because the “services claimed were not customarily available in British Columbia schools”. The circularity of this approach is self-evident. It is also clear, that if accepted, this reasoning would potentially preclude any claim of discrimination where what is needed to achieve equality is not already provided.
12. The Ontario Code once contained a similar requirement but was amended in 1981. As noted in Berg, this may have been in response to decisions that relied on the qualification to restrict the scope of services in a way not unlike the approach used by the Courts below.
13. The fact that not all Canadian human rights statutes contain a requirement that services be customarily available to the public (e.g. Ontario and Nova Scotia) is significant in determining how to interpret the services at issue. Relying on this qualification to determine the nature of services in a claim for accommodation in education would promote inconsistency in analysis and in outcome depending on the jurisdiction. Once again, as noted in Berg: “differences in wording between provinces should not obscure the essentially similar purposes of such provisions, unless the wording clearly evinces a different purpose on behalf of a particular provincial legislature.”
14. Not all Canadian human rights legislation deals with the reasonable and bona fide defence in the same way. The lower Courts in this case appear to have interpreted the right to be free from discrimination in s. 8 of the BC Code as qualified by the reasonable and bona fide requirement also contained in s. 8. However, in Ontario the right to be free from discrimination based on disability under s. 1 of Ontario’s Code stands alone. A separate defence under s. 17 of the Code allows a respondent to justify a prima facie case of discrimination based on disability if it can show that the claimant is “incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right”. However, no one may be judged incapable unless the respondent demonstrates that the needs of the person cannot be accommodated without undue hardship. Unlike the British Columbia Code, the Ontario, Alberta and Saskatchewan statutes do not, in the sections prohibiting discrimination, insert a reasonable and bona fide justification.
15. In O’Malley, this Honourable Court adopted an approach that first looks at whether the claimant has established prima facie discrimination and then separately considers whether a reasonable and bona fide justification has been shown by the respondent.
16. Consistent with principles of interpretation applicable to human rights statutes and the goal of substantive equality, Ontario decisions have accepted broad interpretation for the scope of services protected under the Code. For example, in Braithwaite v. Ontario (Attorney General), the Honourable Peter Cory, sitting as a member of the Human Rights Tribunal of Ontario (“the HRTO”), and the Ontario Divisional Court found that because the Code is quasi-constitutional and remedial, the term services should be interpreted in the least restrictive way.
17. This Honourable Court has adopted a broad definition of the term “services”, recognizing that special education is an accommodation to enable pupils with disabilities to achieve equality and receive the benefits of education which are available to others (Eaton) and that sign language interpretation is an accommodation required to obtain meaningful access to medical services defined broadly (Eldridge). An expansive definition of educational services was also adopted in Ross.
18. Consistent with this approach, the HRTO has not interpreted education services under the Ontario Code in a restrictive manner. In Ontario, education, broadly defined, is the service. Relying on Eaton, the HRTO has stated that special education has as its central purpose the accommodation of students with disabilities so that they are able to receive the benefits of education available to others. The special education scheme established by Ontario “statutorily entrenches the right to accommodation” and allows students with disabilities to access education on an equal basis. The HRTO has noted that this is consistent with the goals of section 15 of the Charter and the Code, that is, the removal of barriers to the equal participation of children with disabilities in education: 
In a case such as the one before me, it seems to me that where a child has been identified as an “exceptional pupil” entitled to special education services, the parties have accepted that the Board has a duty to accommodate the pupil by removing barriers to equal participation in education. Considering the statutory scheme for special education, which entrenches the right of exceptional pupils to accommodation in education, the decision that a child is an “exceptional pupil” would appear to represent an acknowledgement that without those services, that child would be denied equal treatment in education. As a general matter therefore, as stated in Schafer, it would be fair to say that in such circumstances it is “self-evident” that an “exceptional pupil” is unable to access the education system equally without accommodations.
19. The HRTO has indicated that the focus is on whether the claimant had a disability-related need that the respondent failed to reasonably accommodate, thereby denying the claimant the right to equal access to education services. The comparator group analysis is not necessary.
20. The OHRC’s policy on disability and education made pursuant to s. 30 of the Code, states that “Education, in its broadest sense, is a “service” within the meaning of the Code”.
21. Saskatchewan’s Code specifically addresses discriminatory practices in education:
13(1) Every person and every class of persons shall enjoy the right to education in any school, college, university or other institution or place of learning, vocational training or apprenticeship without discrimination on the basis of a prohibited ground other than age.
22. The SHRC defines public services and education broadly and emphasizes that equal treatment does not necessarily mean lack of discrimination. The Saskatchewan Court of Appeal confirmed this approach in Huck, a case involving a person using a wheelchair who wished to view a film. The Court of Appeal did not accept that the service provider could define the service at issue and that the service was a seat from which to view the film. Instead the Court held that the service was a place from which to view it.
23. Article 24 of the Convention on the Rights of Persons with Disabilities confirms that students with disabilities must be able to access the general education system on an equal basis with others in the community; that reasonable accommodation of the individual’s requirements be provided; and that children with disabilities receive the support they require, within the general education system, to facilitate their effective education. Statutory interpretation should be informed and influenced by the values and principles contained in international law and the Charter, and by extension human rights protections should reflect Canada’s international human rights commitments.
ii) The Selection of a Comparator Group is neither Required nor Appropriate in an Accommodation Analysis.
24. This Honourable Court has cautioned against the formalistic use of comparator groups as part of the contextual assessment of an equality claim. The probative value of a comparative analysis varies depending on the nature of the claim and, as a result, such an analysis is not always required in considering whether substantive discrimination is made out; Withler.
25. Discrimination claims where a person with a disability seeks accommodation to be able to access a service or employment do not call for a comparator group analysis. Rather, as was cautioned against in Withler, a comparator group approach like that adopted by the Courts below thwarts the identification of discrimination and fails to capture substantive inequality.
26. Instead, disability-based discrimination analysis calls for the following inquiries to determine whether there has been prima facie discrimination under the relevant human rights legislation: (1) Does the person have a disability? (2) Was the disability a factor in the adverse treatment of that person?
27. If the answer to the first two questions is in the affirmative, then the analysis proceeds to considering the accommodation of the individual: (3) What are the needs associated with the disability? (4) Can those needs be accommodated without causing undue hardship? Neither of those inquiries calls for the identification of a comparator group.
28. The comparator group analysis is unnecessary when a person seeks accommodation, and thereby seeks to have the person’s individual needs met. The comparator group analysis is inappropriate because a person with a disability who seeks accommodation of his or her needs does not seek to be treated the same way that others are treated. Until universal and inclusive design meets everyone’s requirements, avoiding discrimination on the basis of disability requires distinctions to be made, taking into account the actual personal characteristics of people with disabilities. It is the failure to take into account differences and to accommodate needs to the point of undue hardship which results in discrimination against persons with disabilities.
29. In Grismer, the claimant did not seek to be treated the same as all other applicants for a driver’s licence, but rather sought accommodation by way of an individualized assessment to determine whether he could drive safely, despite his limited peripheral vision. In Eldridge the claimants did not seek identical treatment to other patients, but asked to have their hearing impairments accommodated with the provision of communication services. In both cases this Honourable Court found prima facie discrimination without a comparator group analysis.
30. The accommodation process must be individualized and there is both a procedural and substantive duty to accommodate. These requirements, affirmed by this Honourable Court, cannot be reconciled with an approach that simply considers whether the person seeking accommodation has been treated the same way as others who require different accommodation.
31. Disability cases where accommodation is sought, such as in Grismer, Eldridge, and this case, can be distinguished from cases where a person with a disability seeks identical treatment in the form of equal access to a benefits scheme. It is the latter cases that are conducive to a comparator group analysis because the person with a disability is seeking equal access to a benefit scheme provided to persons with different disabilities or a disability of greater severity.
32. In other accommodation cases, not involving people with disabilities, discrimination has been found without a comparator group analysis. In Multani and in Amselem, this Honourable Court found infringements of the claimants’ religious rights, without going through a comparator group analysis. Similarly, the British Columbia Court of Appeal, both before and after its decision in this case, has indicated that a comparator group analysis is not necessary in accommodation cases.
33. In sum, a comparator group analysis is not necessary in any accommodation case. By its very nature, an accommodation case involves a person who seeks to be treated differently.
PART IV - SUBMISSIONS WITH RESPECT TO COSTS
34. The OHRC, SHRC and AHRC make no submission with respect to costs.
PART V – ORDER REQUESTED
35. The OHRC, SHRC and AHRC seek to jointly present ten (10) minutes of oral argument.
ALL OF WHICH IS RESPECTFULLY SUBMITTED. Toronto, March 6, 2012.
Anthony D. Griffin Reema Khawja
Senior Counsel Counsel
Ontario Human Rights Commission Ontario Human Rights Commission
 Lovelace v. Ontario,  1 S.C.R. 950 at paras. 59 and 69.
 Auditor General of Ontario, 2010 Annual Report, c. 4.14: http://www.auditor.on.ca/en/reports_en/en10/414en10.pdf (date accessed: 7 December 2011).
 For example, standards governing the performance of work are to be designed to reflect all members of society and to provide accommodation, in so far as is reasonably possible; British Columbia (Public Service Employee Relations Commission) v. BCGSEU,  3 S.C.R. 3 at para. 68.
 Integration should be recognized as the norm of general application because of the benefits it generally provides; however, in some instances segregation may be a more appropriate accommodation to achieve equality; Eaton v. Brant County Board of Education,  1 S.C.R. 241 at paras. 67 and 69.
 British Columbia (Ministry (Education) v. Moore, 2008 BCSC 264 (CanLII) para. 88. The majority of the Court of Appeal accepted the Superior Court’s approach and analysis; 2010 BCCA 478.
 Moore, BCSC ibid. at para. 99.
 Ibid. at para. 102.
 University of British Columbia v. Berg,  2 S.C.R. 353 at p. 362.
 Moore, BCSC supra note 5 at para. 102. See also para. 86: “A finding of discrimination cannot be based upon discrimination in the provision of services not provided under legislation as to do so is tantamount to dictating to the government what services should be provided.”
 Berg, supra note 8 at p. 372. For example, in Ontario Human Rights Commission v. Ontario Rural Softball Association (1979), 26 O.R. (2d) 134 (C.A.) [QL], a softball association argued that it could determine the nature and scope of the service offered to the public and having done so, could not be compelled to provide a different service. Madam Justice Wilson (as she then was), in dissent on the outcome, noted that this submission, if accepted would have the effect of defeating the object of the legislation. The case dealt with excluding girls from a service directly based on a prohibited ground (sex). However, concerns about using a “customarily available” qualification to limit the scope of a service apply equally to adverse effect discrimination where accommodation is required to access services on an equal basis. See also Saskatchewan (Human Rights Commission) v. Saskatchewan (Department of Social Services), 1988 CanLII 212 (SK CA) in which the Saskatchewan Court of Appeal overturned a Board of Inquiry decision which found that social assistance benefits were not services customarily offered to the public because they were only available to members of the public who met the eligibility criteria.
 Berg, ibid.
 British Columbia (Ministry of Education) v. Moore, BCCA supra note 5 at paras. 165 and 174, 175.
 The Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1, s. 12; Alberta Human Rights Act, RSA 2000, c A-25.5, s. 4.
 Ontario (Human Rights Commission) v. Simpson-Sears Ltd.,  2 S.C.R. 536.
 Braithwaite v. Ontario (Attorney General), 2005 HRTO 31 (CanLII), upheld on this point Ontario (Attorney General) v. Ontario Human Rights Commission, 2007 CanLII 56481 (ON SCDC).
 Eaton, supra note 4.
 Eldridge v. British Columbia (Attorney General),  3 S.C.R. 624.
 Ross v. New Brunswick School District No. 15,  1 S.C.R. 825 at para. 35. Educational services must be viewed in the broad context of not just formal curriculum but also informal aspects of education that come through participation in the whole school environment.
 L.C. v. Toronto District School Board, 2011 HRTO 1336 (CanLII) at paras. 13 and 20.
 Ibid. at para. 25
 Ontario Human Rights Commission, Guidelines on Accessible Education, (Toronto: Queen’s Printer, 2004) at p. 5; http://www.ohrc.on.ca/en/resources/Guides/AccessibleEducation. Section 45.5 of the Ontario Code states that the Human Rights Tribunal of Ontario (the HRTO) may consider OHRC policies in a human rights proceeding before the HRTO and where a party or an intervener in a proceeding requests it, the HRTO shall consider an OHRC policy. OHRC policies have also been applied by a number of courts, including the Court of Appeal for Ontario; Entrop v. Imperial Oil, 2000 CanLII 16800 (ON CA).
 Re Saskatchewan Human Rights Commission and Canadian Odeon Theatres Ltd., 1985 CanLII 183 (SK CA), leave to appeal refused,  1 S.C.R. vi.
 The cinema argued that it treated the patron in the wheelchair the same as all other members of the public by offering a choice of seat from which to view the film. However, the Court concluded that offering wheelchair users only one place from which to view the film, in front of the first row of seats, resulted in differential treatment based on disability. It should also be noted that Court did not consider whether patrons with other disability-related needs were better or worse off in accessing movies than the patron using the wheelchair.
 Slaight Communications Inc. v. Davidson.,  1 S.C.R. 1038; Baker v. Canada (Minister of Citizenship and Immigration),  2 S.C.R. 817.
 Withler v. Canada (Attorney General),  1 S.C.R. 396.
 Québec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City); Québec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City),  1 S.C.R. 665 at para. 84.
 British Columbia Government and Service Employees' Union v. British Columbia (Public Service Employee Relations Commission), 2005 BCCA 129 at paras. 46-49 and 67 (CanLII), per Levine J.A., dissenting.
 Eaton, supra note 4 at para. 66; Eldridge, supra note 17 at para. 65.
 British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights),  3 S.C.R. 868 at paras. 23, 42-44.
 Eldridge, supra note 17 at para. 80.
 McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l'Hôpital général de Montréal,  1 S.C.R. 161 at para. 22.
 British Columbia (Public Service Employee Relations Commission) v. BCGSEU, supra note 3 at para. 66.
 For example, Battlefords and District Co-operative Ltd. v. Gibbs,  3 S.C.R. 566; Granovsky v. Canada (Minister of Employment and Immigration),  1 S.C.R. 703; Nova Scotia (Workers’ Compensation Board) v. Martin,  2 S.C.R. 504.
 Multani v. Commission scolaire Marguerite-Bourgeoys,  1 S.C.R. 256.
 Syndicat Northcrest v. Amselem,  2 S.C.R. 441.
 Kemess Mines Ltd. v. International Union of Operating Engineers, Local 115, 2006 BCCA 58 (CanLII) at para. 30; Lavender Co-Operative Housing Association v. Ford, 2011 BCCA 114 (CanLII) at para. 77.